Appeal No. 97-3065 Page 6
Application No. 08/452,747
to arrive at the claimed invention. See In re Fine, 837 F.2d
1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). Rejections
based on § 103 must rest on a factual basis with these facts
being interpreted without hindsight reconstruction of the
invention from the prior art. The examiner may not, because
of doubt that the invention is patentable, resort to
speculation, unfounded assumption or hindsight reconstruction
to supply deficiencies in the factual basis for the rejection.
See In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 177 (CCPA
1967), cert. denied, 389 U.S. 1057 (1968).
With this as background, we analyze the prior art applied
by the examiner in the rejection of the claims on appeal.
Beaudoin discloses an apparatus for applying an elastic
waistband transversely of a longitudinally moving web. Figure
3 shows the general arrangement of the parts of the apparatus
for
applying elastic waistbands transversely of a moving web. The
principal components of the elastic waistband applicator are a
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